As part of the review of a construction permit, amendment, or
renewal:

(1) The executive director shall compile a compliance history
for:

(A) the existing site when the application is for a new permit,
amendment, or renewal at the existing site;

(B) a site with similar facilities, if any, owned or operated by
the applicant in Texas when the application is for a new facility
at a new site. The commission may require the applicant to indicate
which facilities the applicant considers to be similar.

(2) The applicant shall provide the commission with a compliance
history for sites with similar facilities, if any, owned or
operated by the applicant in other states when:

(A) the application is for a new facility at a new site; and

(B) the applicant does not own or operate similar facilities in
Texas.

(3) If the applicant has no compliance history in the United
States, the applicant shall provide the commission with a
compliance history for any similar facilities owned or operated
by:

(A) a person who is presently an officer, director, or agent of
the applicant;

(B) a parent corporation, subsidiary, or predecessor in interest
of the applicant;

(C) one who owns 20% or more of the applicant, whether directly,
as a shareholder, partner, beneficiary, or otherwise; or

(D) one who controls the applicant or has the ability to direct
the conduct of the applicant.

116.121
exemptions

The compliance history is not required if the total increased
actual emissions of any specific air contaminant (e.g., benzene,
arsenic, etc.) at the site will be accompanied by greater than a
1.1 to 1 reduction of the same specific air contaminant at the
site.

116.122 Contents of
Compliance History

(a) The compliance history shall include all of the following
compliance events and associated information involving the facility
that is the subject of the permit application:

(1) for Texas facilities:

(A) criminal convictions known to the commission and civil
orders, judgments, and decrees identified by stating:

(i) the style of the case;

(ii) the tribunal issuing the conviction or judgment;

(iii) the docket number and the date of action; and

(iv) the general nature of the alleged violation;

(B) administrative enforcement orders identified by stating:

(i) the name or style of action;

(ii) the agency issuing the order;

(iii) the docket number and the date of the order; and

(iv) the general nature of the alleged violation;

(C) compliance proceedings identified by stating:

(i) the name or style of action;

(ii) the general nature of the alleged violation;

(2) for United States facilities outside Texas:

(A) criminal convictions and civil judgments identified by
stating:

(i) the style of the case;

(ii) the tribunal issuing the conviction or judgment;

(iii) the docket number and date of action; and

(iv) the general nature of the alleged violation;

(B) administrative enforcement orders identified by stating:

(i) the name or style of action;

(ii) the agency issuing the order;

(iii) the docket number and the date of the order; and

(iv) the general nature of the alleged violation;

(C) for notices of violation issued by the EPA:

(i) the name of the action;

(ii) the EPA identification number and date of notice; and

(iii) the general nature of the alleged violation.

(b) Violations of fugitive emission monitoring and recordkeeping
requirements imposed either by § 101.20(1) and (2) of this
title (relating to Compliance with Environmental Protection Agency
Standards), or state implementation plan requirements applicable to
major sources in nonattainment areas shall not be included in the
compliance history where:

(1) the violations occurred after the effective date of this
rule, and have been the subject of a commission administrative
enforcement action, and the commission classified the violations as
not being subject to compliance history review; or

(2) the violations occurred during the five years preceding the
effective date of this rule and have been the subject of a
commission administrative enforcement action in which:

(A) the commission did not classify the violations as either
major seriousness or major impact for the purpose of administrative
review; and

(B) the commission assessed a total administrative penalty of
less than $20,000 for the violations.

(c) The commission may request an analysis of the significance
of the compliance events identified in the compliance history and
their relevance to the facility that is the subject of the
application. The commission request shall list specific compliance
events requiring such an analysis.

116.123 Effective
Dates

(a) The requirements under § § 116.120-116.126 of this
title (relating to Compliance History) apply only to applications
filed on or after December 9, 1992.

(b) For applications filed:

(1) before June 1, 1993, neither the commission nor the
applicant is required to include compliance events occurring before
June 1, 1988;

(2) on or after June 1, 1993, neither the commission nor the
applicant is required to include compliance events occurring more
than five years prior to the date on which the application is
filed.

116.124 Public Notice of
Compliance History

When public notice is required under § 116.131 of this
title (relating to Public Notification Requirements), the applicant
shall include the following statement in the notice: "The
facility's compliance file, if any exists, is available for public
review in the regional office of the Texas Natural Resource
Conservation Commission."

116.125 Preservation of
Existing Rights and Procedures

Nothing in this subchapter (concerning Compliance History)
shall:

(1) diminish the rights of any party in a contested case hearing
to raise any issue authorized by Texas Health and Safety Code,
§ 382.0518(c);

(2) diminish the rights of any person to request and obtain
compliance history information from the commission;

(3) limit the authority of the commission to request and
consider any other information that is relevant to the application
under the law; or

(4) create any right in third parties which did not exist before
the effective date of this subchapter.

116.126 Voidance of Permit
Applications

If an applicant does not submit compliance history information
within 180 days after written request from the executive director,
the commission will void the permit application. The applicant
shall also forfeit the fees associated with the permit application.
A new permit application shall be required for further
consideration by the commission.